MARRY Mubaiwa’s successful claim in the High Court for
custody of her three young children was wrongly filed since her lawyers made a
serious error, rendering the whole process a legal nullity, the Supreme Court
ruled yesterday.
The High Court should have refused to hear the matter as a
result, said the Supreme Court, when changing the final legal ruling to: “The
matter be and is hereby struck off the roll with costs.”
Mubaiwa also made unsubstantiated accusations that their
father, Vice President Constantino Chiwenga, had abducted his own children, but
she withdrew this accusation during the hearing of the appeal.
Mubaiwa and the Vice President have separated and are
involved in still-pending legal disputes over property division and child
custody.
The appeal by VP Chiwenga over the custody order granted to
his estranged wife was heard by Deputy Chief Justice Elizabeth Gwaunza, sitting
with Justices Paddington Garwe and Justice Chinembiri Bhunu.
The judges unanimously ruled in the judgment written by Justice
Bhunu and issued with the agreement of his colleagues, that she should have
claimed custody of her children under the Guardianship of Minors Act, which has
sections that allow a court to determine the question of custody of minor
children when spouses begin to live apart.
“She instead, for no good reason and at the instance of her
lawyers, claimed custody of her children under the non-existent and
inapplicable law of ‘provisional’ spoliation,” ruled the judges.
It was the court’s finding that High Court Judge Justice
Christopher Dube-Banda, presumably having realised that Mubaiwa’s claim was
incompetent and a nullity at law, improperly granted her a final interdict
which she had not asked for. But that order could not stand.
The judges, however, were in agreement that the custody
dispute was now back before the High Court under the proper Act, hence the
issue of the custody of the three minor children was best left to that court
for a substantive determination on the merits after hearing evidence.
By granting Mubaiwa a final interdict, which she had not
asked for in her claims, the court held that Justice Dube-Banda made a grave
error and misdirected himself.
Firstly, in that he had neither the jurisdiction nor the
discretion to award Mubaiwa relief that she had not asked for, saying a
“judicial officer who acts without jurisdiction acts without authority and to
that extent illegally”.
The lower court was also found to have determined a matter
that was not before it and without hearing argument on the question of whether
or not to grant a final interdict.
The matter that was before it was whether or not to grant
the “provisional” spoliation order, according to the court’s findings.
And in any case, once the judge realised that the matter
was not before him in the correct form, he should have struck it off the roll
rather than giving any order, provisional or final. It was also a legal error
to make a decision without hearing both Mubaiwa and the Vice President.
The judges noted that at law a “provisional” spoliation
order was incompetent as relief for the acquisition of a final interdict. This
is because a final interdict cannot be founded on a “provisional” spoliation
order which is in itself a nullity at law, the court said. Spoliation orders
are designed as an immediate order to allow users of property to retain
possession while other legal issues are sorted out. It was also incompetent for
Mubaiwa’s lawyers to seek custody of minor children through spoliation
proceedings when there were clear procedures in the Guardianship of Minors Act.
The Court said it appeared that the lower court judge was
overwhelmed by the status of the Vice President Chiwenga and the intensity of
the conflict and his vision was apparently clouded by the dust of the conflict,
prompting him to wade into its murky waters in aid of the respondent, and
granting Mubaiwa the relief that she had not asked for.
“Such conduct was injudicious and an affront to the time
honoured tenets of justice, fairness and equality before the courts. In the
absence of any evidence of abuse of office, the appellant ought to have been
treated like any other citizen before the (lower) court.”
From the facts and analysis of the law, the court found
that although Mubaiwa may have had a meritorious case, she unfortunately did
not get the benefit of sound legal advice in order to assert her rights.
Mubaiwa’s conduct in presenting an incompetent claim and
her unsubstantiated attack on the Vice President’s character could have
justified an order for punitive costs against her, but in light of the fact
that she did not get appropriate legal advice and representation from her
lawyers, the court took the view that an order of costs on the higher scale
would be unduly harsh. Ordinary costs do not cover the legal fees of the losing
party. The higher scale does cover the necessary legal fees.
Through his lawyer, Advocate Lewis Uriri, instructed by Mr
Wilson Manase of Manase and Manase, Vice President Chiwenga had argued that the
court could not place his three minor children in the custody of his estranged
wife, who required to be under constant care of a surgeon, physician and a
psychiatrist.
VP Chiwenga’s lawyers welcomed the court’s ruling. Mr
Wellington Pasi, a senior partner in Manase and Manase law firm, said Mubayiwa
brought frivolous accusations that the Vice President had abducted his own
children, “which allegation was a blatant lie and had no factual or legal basis
but was meant to score cheap political points in the media and character
assassinate our client”.
“It was wrong for Ms Mubayiwa to apply for spoliation of
the parties’ minor children as if they were some asset to melee over. Children
deserve love, care and protection from such unnecessary squabbles.
“Ms Mubaiwa brought a baseless application without the
benefit of sound legal advice from her counsel and the judge-a-quo should not
have wrongly attacked my client with neither evidence nor a legal basis. We are
glad justice has prevailed.”
The lawyer, however, said they do not blame the court much
as it was for the first time handling a high profile case after the appointment
of the judge.
“More particularly a case involving the Vice President of
the nation. However, the (lower) court should have tempered its language which
bordered on disrespect for the Vice President.” Herald
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